IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

William J. Brown, II, :

Plaintiff, :

v. : Case No. 2:11-cv-995

 : JUDGE ALGENON L. MARBLEY

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, William J. Brown, II, filed this action seeking

review of a decision of the Commissioner of Social Security

denying his application for supplemental security income. That

application was filed on January 23, 2009 and alleged that

plaintiff became disabled on May 14, 2008. 

After initial administrative denials of his application,

plaintiff was given a hearing before an Administrative Law Judge

on May 10, 2011. In a decision dated June 13, 2011, the ALJ

denied benefits. That became the Commissioner’s final decision

on September 9, 2011, when the Appeals Council denied review.

After plaintiff filed this case, the Commissioner filed the

administrative record on February 14, 2012. Plaintiff filed his

statement of specific errors on March 19, 2012. The Commissioner

filed a response on April 23, 2012. No reply brief was filed,

and the case is now ready to decide.

II. The Lay Testimony at the Administrative Hearing

 Plaintiff’s testimony at the administrative hearing is found

at pages 47 through 68 of the record. Plaintiff, who was 33

years old at the time of the hearing and attended school through

the ninth grade, testified as follows.

Plaintiff last worked in 2006, which was prior to the time

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he had part of his leg amputated. At the time of the hearing, he

was the custodial parent for his five-year-old child, but in the

past he also had cared for his sister’s children. He receives

help from various people in caring for the child due to problems

caused by his pain. He can climb steps, but sometimes needs to

use his hands to do that.

In the past, plaintiff also worked as a crew leader at a

Wendy’s restaurant, and had the same job at a Rally’s restaurant. 

He did have problems getting along with people at work. Other

past work included pizza preparation and delivery, working in a

warehouse, and construction work. 

Plaintiff testified that he suffered a leg injury in

October, 2007. He was fitted for a prosthesis at the end of

November of the same year. He had problems with pain from

putting pressure on his stump. One year after the injury, he was

able to walk a block using a cane. He had follow-up surgery in

2009; before that, he had been using his prosthesis two to three

times per week. Other times, he used a walker. The 2009 surgery

helped him somewhat, allowing him to increase the use of his

prosthesis. He was taking both pain medication and an antidepressant. With medications, he could walk up to two blocks,

but had difficulty walking on uneven surfaces. 

On a normal day, plaintiff would get his son ready for

school and do housecleaning. He was able to run a vacuum cleaner

for twenty to thirty minutes. He did not socialize much.

III. The Medical Records

The medical records in this case are found beginning on page

168 of the administrative record. The pertinent records can be

summarized as follows.

Plaintiff was admitted to Grant Medical Center on October 6,

2007, for treatment of a gunshot wound to his left leg. He

underwent a below-the-knee amputation originally, but a second

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procedure was done to revise the amputation to above the knee. 

He met with a prosthetist about three weeks after the second

surgery to be fitted with a stump sleeve. He was described as

“doing well” the following month, and the amputation site was

healing well. At that point, he was walking with a walker, and

he had no complaints about pain in his stump or phantom pain. On

December 18, 2007, his surgeon, Dr. Mehta, recommended prosthetic

fitting.

When plaintiff saw Dr. Mehta again on May 27, 2008, he was

reporting an electric-shock type feeling when he put pressure on

his stump. He was walking with his prosthesis without any

assistive devices, but walked with a limp. Examination revealed

an area on the stump causing pain. Dr. Mehta’s impression was

superficial femoral nerve neuritis, moderately symptomatic. He

was put on a trial of Lyrica. Almost a year later, he was

reporting similar symptoms, and was diagnosed with neuroma of the

stump involving the sciatic nerve. He was referred to a pain

management physician. However, he did not undergo a recommended

injection for pain, but instead came back to see Dr. Mehta. 

Plaintiff reported continuing to struggle with his prosthesis,

and he had a tender spot which appeared to be a screw head. 

Plaintiff agreed to an open revision which would also involve

removal of the screw. He underwent that surgery, which resulted

in the excision of several neuromas. A good outcome was

predicted. Shortly after the surgery, he was walking on

crutches. His incision was doing well. The sutures were removed

and he was given pain medication, and told to wait for another

week before putting on his prosthesis. By August 25, 2009, he

was doing much better and wearing his prosthesis, walking with

only a slight limp.

The record also contains progress notes from Ace

Prosthetics, Inc. On April 9, 2008, plaintiff was reporting that

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the socket of his prosthesis was too tight. The diameter of the

socket was increased and some other changes were made. Plaintiff

reported being pleased with the changes and said he was much more

comfortable. His issues at that time were described as being

unable to walk long distances or on uneven ground, but with

practice he was expected to improve in those areas.

Dr. Vogel, a state agency reviewer, examined the records and

expressed an opinion as to plaintiff’s residual functional

capacity on May 6, 2008. He thought plaintiff was limited to

working at the sedentary level with standing and walking for two

hours in a work day. As of the date of his evaluation, there was

no evidence that plaintiff was using a walker or assistive

device. Dr. Vogel did impose some postural limitations.

Plaintiff attended a consultative examination on March 26,

2009, which was done by Dr. Woskobnick. He walked with a limping

gait and held a cane in his right hand. The diagnoses included

status post multiple gunshot wounds with left above-the-knee

amputation and a prosthesis which was too long. Plaintiff also

had chronic back pain and abdominal pain. Subsequent to that

evaluation, Dr. Bolz reviewed the records and, like Dr. Vogel,

limited plaintiff to sedentary work, but noted that his use of a

cane appeared to be obligatory but he might be able to stop using

it if his prosthesis were fitted properly. 

There are some additional records in the file. However,

they were prepared after the date on which plaintiff concedes he

no longer met the requirements of Section 1.05B, so they will not

be discussed here.

 IV. The Vocational Testimony

Dr. Walsh, a vocational expert, also testified at the

administrative hearing. His testimony begins at page 68 of the

administrative record. Dr. Walsh characterized plaintiff’s past

work as ranging from light to very heavy in exertional level, and

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as being either unskilled or semi-skilled. 

Dr. Walsh was asked some questions about a hypothetical

person who was able to lift ten pounds and could sit for up to

six hours in a workday, and stand or walk up to two hours, with

the use of a cane. That person could also climb ramps and stairs

occasionally, could not kneel or crawl, could balance only

occasionally, and could not be exposed to moving machinery or

unprotected heights. Dr. Walsh testified that such a person

could not do any of plaintiff’s past work. However, such a

person who also was of plaintiff’s age and had his educational

background could do some sedentary jobs such as packager,

inspector, or assembler.

Dr. Walsh was also asked whether there would be jobs for

someone who needed to use a walker or two crutches at least one

day a week in a work environment. His response was that “I think

we’re moving to accommodated work given those additional

situations.” (Tr. 70). He was not asked to explain that answer

further.

 V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 9

through 22 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

had not engaged in substantial gainful activity from his

application date of January 23, 2009 through the date of the

decision. As far as plaintiff’s impairments are concerned, the

ALJ found that plaintiff had severe impairments “best described

as (1) status post a (sic) October 2007 gunshot wound to his left

lower extremity complicated by an infection and requiring an

above the knee amputation of his left leg, (2) back, and (3)

abdomen....” (Tr. 11). The ALJ also found that these

impairments did not meet or equal the requirements of any section

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of the Listing of Impairments (20 C.F.R. Part 404, Subpart P,

Appendix 1).

Moving to the next step of the sequential evaluation

process, the ALJ found that plaintiff had the residual functional

capacity to lift and carry ten pounds both frequently and

occasionally, to sit with normal breaks for six hours in a work

day, and to stand or walk for two hours total, with the

assistance of a cane. Further, plaintiff could occasionally

climb ramps and stairs and balance, and could not climb ladders,

ropes, or scaffolds, kneel, crawl, work at unprotected heights,

and work around hazardous machinery. The ALJ accepted the

vocational expert’s testimony that someone with such limitations

could perform sedentary jobs such as packer, inspector, or simple

assembler, and that approximately 1,200 such jobs existed in the

regional economy and approximately 41,000 such jobs existed in

the state economy. As a result, the ALJ concluded that plaintiff

had not demonstrated an entitlement to benefits.

VI. Plaintiff’s Statement of Specific Errors

 In his statement of specific errors, plaintiff raises only a

single issue. He asserts that the ALJ should have found that

between the date of his amputation and August, 2009, he met the

requirements of Section 1.05B of the Listing of Impairments,

which deals with amputations. In particular, he claims that the

medical evidence was not properly analyzed, and that if it had

been, the ALJ would have found that he did not have the ability

either to use a prosthetic device or to ambulate effectively

during that time period, which are the prerequisites for a

finding of disability under that particular section. The Court

generally reviews the administrative decision of a Social

Security ALJ under this legal standard:

Standard of Review. Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

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Commissioner] as to any fact, if supported by substantial

evidence, shall be conclusive. . . ." Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion'" Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.

NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere

scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

Cir. 1976). The Commissioner's findings of fact must be based

upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.

1984). In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into

account whatever in the record fairly detracts from its weight.'" 

Beavers v. Secretary of Health, Education and Welfare, 577 F.2d

383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human

Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

Listing 1.05B presumes disability due to a lower extremity

amputation “at or above the tarsal region” (which happened here)

if certain criteria are satisfied. In order to meet that

Listing, the claimant must have “stump complications resulting in

medical inability to use a prosthetic device to ambulate

effectively, as defined in 1.00B2b, which have lasted for at

least 12 months.” Section 1.00B2b defines the inability to

ambulate effectively as “an extreme limitation in the ability to

walk” characterized by “insufficient lower extremity functioning

... to permit independent ambulation without the use of hand-held

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assistive device(s) that limits the functioning of both upper

extremities.” An individual can ambulate effectively if he or

she is “capable of sustaining a reasonable walking pace over a

sufficient distance to be able to carry out activities of daily

living” and includes being able to walk “without the use of a

walker, two crutches, or two canes ....” Plaintiff contends that

the evidence compels the conclusion that he satisfied these

criteria from the date of his injury through August 25, 2009.

The ALJ specifically determined that plaintiff had not

satisfied any of the sections of the Listing of Impairments. He

did not specifically cite to Listing 1.05B, but rather stated

that he had considered all of the Listings with particular

attention on sections 1.02, 2.02, 2.03 and 2.04. (Tr. 15). The

first of these deals with “major dysfunction of a joint,” and the

latter three deal with vision problems. Given that there is a

section specifically devoted to amputations, it is somewhat

surprising that the ALJ never mentioned this section specifically

or explained why he concluded that plaintiff had not satisfied

its requirements. The ALJ did state, however, that no medical

source mentioned any findings which would meet or equal any

listed impairment, and that appears to be true.

In his step four analysis (determining the claimant’s

residual functional capacity), the ALJ discussed the medical

evidence in detail. He noted that plaintiff’s treatment had been

generally successful and that no physician had ever expressed the

opinion that plaintiff could not work. The ALJ cited

specifically to the April 2008 note showing that plaintiff’s

major limitations were in walking distances or over uneven

ground, and concluded that his allegation of disability due to

stump pain was not credible. The ALJ accepted Dr. Vogel’s

assessment and found plaintiff to have that residual functional

capacity.

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In his statement of errors, plaintiff does not argue that

the ALJ’s failure to mention Listing 1.05B directly, or to make a

specific analysis of whether plaintiff was unable to walk without

the use of a walker or crutches for a continuous 12-month period

(which is what the Listing requires) was error. Rather, he

argues that the more general finding made by the ALJ to the

effect that no section of the Listing was satisfied is not

supported by substantial evidence. As support for his argument,

he cites to the medical evidence summarized above, which showed

that from time to time plaintiff was having problems using or

adjusting to his prosthesis, and his testimony that he could only

use it two or three days per week until the 2009 surgery.

On this precise issue, the Commissioner’s memorandum

correctly points out that there is scant evidence, particularly

in 2008, that plaintiff was continually unable to ambulate

effectively for any twelve-month period. His major complaints

about the prosthesis surfaced in April of 2009, when he developed

a neuroma causing him pain, which led to the surgery that year. 

In 2008, all of the notes (and there are not many) show that he

had made good progress and was walking either without any

assistive devices, or with one cane, which is not enough to meet

the requirements of section 1.05B. Both state agency reviewers

thought he could stand or walk for up to two hours in a work day. 

Neither evaluation contained any mention of the need for him to

use two crutches, two canes, or a walker, thus essentially

precluding the use of his hands while standing or walking, and

both thought he could climb stairs or ramps occasionally. 

Again, focusing just on the issue of whether the record

contains enough evidence from which a reasonable person could

conclude that plaintiff’s condition did not meet the Listings, it

does. The presence of substantial evidence to support the

opposite conclusion says nothing about whether the record would

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permit either conclusion to be drawn, and has consistently been

rejected as a basis for overturning an ALJ’s decision. See,

e.g., Kalmbach v. Comm’r of Social Security, 409 Fed. Appx. 852,

859 (6th Cir. Jan. 7, 2011) (“If substantial evidence supports

the ALJ's conclusion and the ALJ applied the correct legal

standards, we are not at liberty to reverse the ALJ's decision

even if substantial evidence exists in the record that would have

supported an opposite conclusion”). Because that appears to be

the gist of plaintiff’s argument, the argument is not well-taken

and does not support an order overturning the ALJ’s decision. 

VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be overruled and that judgment be

entered in favor of the defendant Commissioner of Social

Security.

VIII. Procedure on Objections

If any party objects to this Report and Recommendation,

that party may, within fourteen (14) days of the date of this

Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which

objection is made, together with supporting authority for the

objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified

proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings

or recommendations made herein, may receive further evidence

or may recommit this matter to the magistrate judge with

instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

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Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

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